Video Game Law:
A Common(wealth) perspective?
May 20/21,2014
University of Auckland
Jon Festinger Q.C.
Centre for Digital Media
Festinger Law & Strategy
http://videogame.law.ubc.ca
@gamebizlaw
jon_festinger@thecdm.ca
http://videogame.law.ubc.ca
Special Issue of
the UBC Law
Review on “Digital
Media, Video
Games, And the
Law” available…
http://ubclawreview.ca/issues/no3
sept/
Gaming Bio
Video Game Leadership
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Firsts & furthers, as well as barriers broken:
interactivity (multiplayer “Spacewar”)
“Control” – voice, mouse to Kinect to Google Glass
On-line “community”
social
voice over IP
open world
avatars (zeitgeist, memes, identity & equality)
3D
Virtual reality
Portability (handhelds)
1. WHAT IS A
(VIDEO)
GAME ?
Key seems to be in the…
The “Magic Circle”
“All play moves and has its being within a play-ground marked off
beforehand either materially or ideally, deliberately or as a matter of course.
Just as there is no formal difference between play and ritual, so the
‘consecrated spot’ cannot be formally distinguished from the play-ground.
The arena, the card-table, the magic circle, the temple, the stage, the
screen, the tennis court, the court of justice, etc. are all in form and
function play-grounds, i.e. forbidden spots, isolated, hedged round,
hallowed, within which special rules obtain. All are temporary worlds
within the ordinary world, dedicated to the performance of an act apart.”
Johan Huizinga (1872-1945) in “Homo Ludens: A Study of the Play-Element in
Culture”. Applied to video games by Katie Salen & Eric Zimmerman in “Rules
of Play: Game Design Fundamentals” (2003)
Which leads to: Application of real world
laws to virtual environments
• Is there a virtual world?
• Is WoW its own country?
• Ben Duranske “Virtual Law” (2008): “This chapter will argue that
the law needs to acknowledge and provide protection for virtual property,
but that it must do so in a way that preserves virtual worlds and games as
play spaces, at least to the extent that the developers desire their worlds to
remain pure play spaces. On one hand, many game and virtual world providers
seek to avoid real-life implications in their social and play spaces. Where
providers take reasonable steps to draw a line between the real and the virtual,
the world or game should be protected by the “magic circle” that protects other
play spaces (from theme parks to family Monopoly games) from taking on
inadvertent real-world implications. On the other hand, it is both inevitable
and desirable that some game and virtual world designers will seek to
include real money trade (RMT) and offer a real cash economy (RCE) in
their platforms. Users of these platforms need the protection of virtual
property law.”http://www.amazon.com/Benjamin-TysonDuranske/e/B001JP104A
• EULA/ToS: The “real world law” is the law of contracts.
When is it a game (in IP terms)?
“Games and Other Uncopyrightable Systems” Bruce Boyden
(2011) http://www.georgemasonlawreview.org/doc/Boyden_18-2_2011.pdf
“Games therefore pose a number of challenges for copyright
and patent law. Yet to date, intellectual property doctrine and
scholarship has not really grappled with the slippery nature
of games. Indeed, copyright has developed a very simple
black-letter rule to handle them: games are not copyrightable.
…What could be the purpose of such a rule?”
Two possibilities emerge from the cases. First, several cases
describe games, and game rules, as unprotectable ideas…
The other possible explanation that emerges from the case
law is that games are uncopyrightable systems or
processes.”
Boyden - Conclusion
“Games are systems in exactly the same way. A game, as
sold, is only a game form; the content necessary for an
instance of the game comes from the players. That is, the
game form establishes the environment for play—the game
space—and it defines permissible moves and the conditions for
winning or drawing. But the game itself is supplied by the
players. Games are systems in the same way that the excluded
schemes in the cases above were systems.”
“For systems, the rule against the copyrightability of games
demonstrates why systems are generally uncopyrightable and why
that term has special significance. The term is not merely a
synonym for “idea,” or “process.” Systems are shells into
which users pour meaning. While they may contain expression
themselves, that expression is there merely to facilitate the
meaning added by the user. Copyright properly excludes them.”
2. THE IP
THRESHOLD
FOR
GAMES
BREAKOUT
Issue: The “creativity standard” in copyright.
Atari v. Oman - 1989/1992 USCA DC Cir.
* “BREAKOUT's audiovisual display features a wall formed by red, amber, green,
and blue layers of rectangles representing bricks. A player maneuvers a control
knob that causes a rectangular-shaped representation of a paddle to hit a squareshaped representation of a ball against the brick wall. When the ball hits a brick,
that brick disappears from its row, the player scores points, and a brick on a higher
row becomes exposed. A "breakout" occurs when the ball penetrates through
all rows of bricks and moves into the space between the wall and the top of
the screen; the ball then ricochets in a zig-zag pattern off the sides of the
screen and the top layer of the wall, removing bricks upon contact and adding
more points to the player's score. Various tones sound as the ball touches
different objects or places on the screen. The size of the paddle diminishes and the
motion of the ball accelerates as the game is played.”
District court judge asked counsel for the Register: "If Picasso had
painted a round object on a canvas, would you say because it
depicts a familiar subject--namely, something that's round--it
can't be copyrighted?”
Atari Games Corp. v. Oman, 979 F. 2d 242 - 1992 - Court of Appeals, Dist. of Columbia Circuit
Atari Games Corp. v. Oman, 888 F. 2d 878 - 1989 - Court of Appeals, Dist. of Columbia Circuit
Atari Games Corp. v. Oman, 693 F. Supp. 1204 - 1988 - Dist. Court, Dist. of Columbia
3. FREEDOM TO
MOD/
CREAtE ?
Videogames as Proof
• Video Games as proof of mutually reliant
merged
creativity?
• Player’s creative input is necessary to the game & game
designer. Game designer’s creativity is (obviously)
necessary for the game to exist.
• Video-games: Either exception where all creativity is
connected (by design) or more proof that all creativity is
connected generally???
……. Evolving a single standard:
• For CREATORS as USERS, &
• For USERS as CREATORS
Blizzard v. Internet Gateway (Battle.net clone)
• “BnetD” versus Blizzard’s own “Battle.net”
• Amici Curiae Brief supporting defendants by teachers of IP Law in
U.S. law
schoolshttps://www.eff.org/sites/default/files/filenode/Blizzard_v_bnetd/20040221_law_pr
ofessor_brief.pdf
• Argued unsuccessfully that insofar as they prohibit
permissible “reverse engineering” Blizzard’s
EULA’s should be preempted by copyright law.
Alternatively argued that enforcement of the EULA’s
should be denied under the Doctrine of Copyright
Misuse (related to concept of “Copyright
Monopoly”).
• Attempted unsuccessfully to preserve Sega Enterprises v.
Accolade, Inc. statement of the application of Fair Use to to
reverse Engineering
Blizzard v. Internet Gateway - con’d
Davidson & Associates, Inc. v. Internet Gateway, 2004 U.S. Dist. LEXIS 20369
(E.D. Mo. 2004), aff’d 2005 U.S. App. LEXIS 18973 (8th Cir. 2005)
EULA: “… subject to the grant of license hereinabove, you may not, in whole or in
part, copy, photocopy, reproduce, translate, reverse engineer, derive source code,
modify, disassemble, decompile, create derivative works based on the Program, or
remove any proprietary notices or labels on the program without the prior consent, in
writing, of Blizzard.”
TOU: “You are entitled to use Battle.net for your own personal use, but you shall not
be entitled to … (ii) copy, photocopy, reproduce, translate, reverse engineer, modify,
disassemble, or de-compile, in whole or in part, any Battle.net software; (iii) create
derivative works based on Battle.net; (iv) host or provide matchmaking services for any
Blizzard software programs or emulate or redirect the communication protocols used by
Blizzard as part of Battle.net, through protocol emulation, tunneling, modifying, or
adding components to the Program, use of a utility program, or any other technique
now known or hereafter developed for any purpose, including, but not limited to,
network play over the Internet, network play utilizing commercial or non-commercial
gaming networks, or as part of content aggregation networks without the prior written
consent of Blizzard or exploit Battle.net or any of its parts for any commercial purpose
…”
Think about Tatoos
Escobedo v. THQ, Inc.
Tattoo artist sues THQ, makers of UFC
video game for copyright
infringement. Artist claims to have
tattooed an originally created lion
on Carlos Condit’s body. Escobedo
and Condit had no written agreement.
See: “Copyright in Tattoo Case”
http://www.dmlp.org/blog/2012/copyright-tattoocase-escobedo-v-thq-inc
"Tatoos and Copyright Infringement” by
C. Harkins (L&C Law Review)
http://www.brinksgilson.com/files/190.pdf
IS Creativity More
Important than Property?
Can I Mod
Yet?
4. EULA’s,
ToS & the
Post IP World
Are we already IN THE POST IP WORLD?
In todays world….In real terms….Is
it possible that…
IP has become VIRTUALLY*
MEANINGLESS?
mean·ing·less/ˈmēniNGlis/
Adjective: Having no meaning or significance.
Having no purpose or reason.
Synonyms:
pointless - senseless - unmeaning - insignificant
– inane
*no pun intended
• No one reads EULA’s, ToS’s & Privacy Policies:
• “To Read All Of The Privacy Policies You Encounter,
You’d Need to Take A Month Off From Work Every
Year”http://www.techdirt.com/articles/20120420/10560418585/to-read-all-privacypolicies-you-encounter-youd-need-to-take-month-off-work-each-year.shtml
• @gamerlaw: Amazing study by @nyulaw: "overall average
rate of readership of EULAs is on the order of 0.1 percent to1
percent” http://t.co/DFcF0mx0
• For review of “click-wrap” authorities see: Century 21 v.
Rogers Communications 2011BCSC 1196 (upholding ToU)
http://canlii.ca/en/bc/bcsc/doc/2011/2011bcsc1196/2011bcsc1196.html
Re EULA’s etc.
“Boilerplate: The Fine Print, Vanishing
Rights, and the Rule of Law”
Princeton University Press
Margaret Jane Radin, Henry King Ransom Professor
of Law at the University of Michigan and the William
Benjamin Scott and Luna M. Scott Professor of Law,
emerita, at Stanford University
Insidious Results?
Censorship controls effectively delegated to private
interests (without free speech/expression overrides).
* “Apple rejects game based on Syrian civil
war”http://killscreendaily.com/articles/news/apple-rejects-game-based-syrian-civil-war/
* “iOS games chafe under Apple's directions: 'If you want to
criticize a religion, write
a book’”http://www.theverge.com/2013/1/16/3879194/apple-app-store-guidelines-tell-gamedevelopers-to-avoid-serious-themes
* “Turns Out Sexist Talk on Xbox Live Won't Earn You a
Lifetime Ban” – but racist talk will.http://www.gamepolitics.com/2012/11/07/turnsout-sexist-talk-xbox-live-wont-earn-you-lifetime-ban#.URsttVpAR3c
* & less insidiously: “Blizzard Bans 'Several Thousand' Diablo
III Players for Cheating” – using bots (would “Notice”
do?)http://gamepolitics.com/2012/12/19/blizzard-bans-several-thousand-diablo-iii-playerscheating#.URswDFpAR3c
5. The Future
of Video Games
{& PRIVACY}
Start with “Identities”
Avatar v. real names – what should be disclosed & to
whom? “Google's Vint Cerf explains why Facebook's real-name
requirement
is flawed” http://www.theverge.com/2013/3/5/4066546/vint-cerf-real-nameauthentication-useful-but-anonymity-necessary
“Facebook wins legal battle to force Europeans to use real
names online”
http://www.theverge.com/2013/2/15/3991458/german-court-rules-in-facebooks-favor-europeans-must-use-real-names
• Avatars deeply embedded in history of gaming - core to
play - suspension of disbelief - “magic circle”
• Anonymity also deeply embedded in history of
the “web”
• Extra Legal Measures (“Doxxing” – outing real
identities)
“Do trolls have privacy rights” http://www.technollama.co.uk/do-trolls-have-privacyrights
State Action: “Five More Game Companies Join New York
State’s ‘Operation Game Over’ Initiative, 2100 More
Accounts
Purged”http://www.theverge.com/2013/2/15/3991458/german-court-rules-in-facebooks-favoreuropeans-must-use-real-names
“State Laws Restricting Social media Use by Sex Offenders
Are Failing in Court” http://blog.ericgoldman.org/archives/2013/01/state_laws_rest.htm
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WHERE ARE WE
3D Printing:
Virtual Reality (Occulus Rift)
Complexities of virtual goods
Virtual Currencies (Bitcoin)
Augmented Reality
Google Glass
Kinnect/voice/motion control
Neurogaming
Wifi overtakes Cellular
The “Cloud”
“Self-driving” vehicles
The (Software) Patent
Problem:
Patent Trolls
Fingerprint passwords
NOW?
The new video game (hypothetical)
Real-world “play” (“Ingress” – Capture the Flag mechanic)
+ Immersive control mechanism (Google Glass)
+ Anywhere/any device capability (the “cloud”)
+ “Open World” design (literally & Google Earth)
+ Tools/weapons (AR Drone Quadra Copter; Google Car)
IS THIS REALLY A GAME?
+
Now Ponder This…
• “ARE YOU LIVING IN A COMPUTER
SIMULATION?” Nick Bostrom – Faculty of
Philosophy, Oxford University. http://www.simulationargument.com/simulation.html
• “Physicists devise test to see if we're living in
'The Matrix”http://www.theverge.com/2012/10/11/3487710/computer-simulation-silasbeane-university-bonn
So now you are ready
for what is next…
TELEPATHIC
GAMING
Truly Immersive Virtual Reality
1. Start With Occulus Rift or MS Illumiroom
2. Add Physical Player Response Measurements
3. Add Neurogaming
4. Add Brain to Brain Interfaces
5. Add Big Data
6. Add “Lifestream”
7. Add 3D Printing
8. Add Smart Remote Control Vehicles (Anki)
9. Add (virtual?) monetization
10.Wrap it all into Augmented Reality (Google
Glass/real- world interface)
SEE ANY LEGAL ISSUES?
MAIN ISSUES WILL BE
PRIVACY
PRIVACY
PRIVACY
PRIVACY
PRIVACY
PRIVACY
CONSUMER PROTECTION
(DIGITAL MANIPULATION) – “Calo”
Layers of Privacy in Video Games
9. Access to law enforcement by Search Warrant
8. Access by law enforcement to information where gamer does not have a
“reasonable expectation of privacy” (highly interpretive)
7. Aggregated Gamer/Game information available to advertisers/sponsors/
purchasers having relationships with game/developer/game network/social
network/ (ISP-carrier?) as permitted by EULA/ToS
6. Gamer/Game information available to ISP/network carrier/mobile carrier
(often includes location information)
5. Gamer/Game information useable by game network/social network
(permissions)/ISP (Steam, XBLive, Facebook) per ToS (often
includes location information)
4. Gamer information useable by developer/publisher per EULA
3B. Audio gaming layer – quasi-public (through game)
3A. Audio gaming layer – private (Ventrilo)
2. Gamer shares information for “magic circle” purposes (multiplayer; forums)
1. Gamer creates information
Video Game Privacy Breaches
“UK regulators fine Sony for 'preventable' 2011 PSN
hack” (Sony dropped appeal re 2011
hack)
http://www.theverge.com/2013/1/24/3910538/uk-government-fines-sony-for-preventable-psn-databreach
“Blizzard Faces Class Action Over Battle.net
Security”
http://www.gamepolitics.com/2012/11/09/blizzard-faces-class-action-over-battlenet-security#.UUl0jqXR1Lw
“Data Breach Class Action against Popular Video Game
Developer Dismissed for Failure to Plead Adequate
Damages”
(Valve/STEAM)http://www.dataprivacymonitor.com/data-breaches/data-breachclass-action-against-popular-video-game-developer-dismissed-for-failure-to-plead-adequat/
+ “Steam’s Sub Agreement Prohibits Class-Action
Lawsuit
http://www.rockpapershotgun.com/2012/08/01/steams-sub-agreement-prohibits-class-action-lawsuits/
“FTC fines Path mobile social networking app $800,000
for privacy breaches”
http://www.lexology.com/library/detail.aspx?g=6f2cc64a-755d-4cbf-a57e-b1ee458280f6
“Bug in EA’s Origin game platform allows attackers to
hijack player PC’s”
http://arstechnica.com/security/2013/03/bug-on-eas-origin-game-platform-allows-attackers-to-hijack-playerpcs/
& Can the Magic Circle
EVEN SURVIVE?
NO QUESTIO
N IT’S SHR
INKINg
6. Social Issues:
Violence
&
Sexism
Assaults on Videogames
Assaults by Videogames
REMIXING VIOLENCE, SEXISM
& CIVIL SOCIETY
Violent Games, Liability & Regulation: Cases
• Watters v. TSR (D&D) 1990 USCA
• James v. Meow (Heath High, Kentucky) 2002 USCA
• Sanders v. Acclaim (Columbine) 2002 US Dist.
• Wilson v. Midway (Mortal Kombat) 2002 US Dist.
---------------------------------------------------------• American Amusement v. Kendrick 2001 USCA
(protecting minors)
• IDSA v. St. Louis 2003 USCA (protecting minors)
• VSDA v. Maleng 2004 US Dist. (regulate games
depicting violence against law enforcement)
• ESA v. Blagojevich 2006 USCA (protecting minors)
• EMA v. Henry 2007 US Dist. (protecting minors)
• ESA v. Swanson 2008 USCA (purchase contrary to
“rating”)
• ESA v. Chicago Transit 2010 US Dist. (restricted
“M” game ads on CTA vehicles)
• ESA v. Schwarzenegger 2011 SCOTUS (prohibited violent
video games) - Class 12 upcoming
Violent Games, Liability & Regulation: Rationales
• Proximate cause (civil) not demonstrated - not
foreseeable - studies ambiguous re “actual harm”
• Products liability claims inapplicable
• Duty to exercise ordinary care
----------------------------------------------------• Link of violent games to violence unproven –
causality not demonstrated; correlation not cause
• Thought control = totalitarianism = family
responsibility
• Drafting not narrowly tailored to objective
• Vague & ambiguous definitions/provisions
• Classic literature/film, Bible, fairy-tale
comparisons
Canada - potentially quite different (if tested)
• Montreal v. Arcade Amusements 1985 SCC – City
By-Law 5156 (1977) cannot discriminate based
on age (under 18) prohibiting entry to video
arcade (narrowly construed decision)
• Irwin Toy v. Quebec 1989 SCC constitutionality of ban on commercial
advertising directed at children under 13
upheld (no evidence or discussion of direct
harm)
• R. v. Sharpe 2001 SCC - reasoned apprehension
of harm to children is sufficient (child
pornography)
The Painful Truth…
Watters v. TSR, Inc., 904 F. 2d 378 - Court of Appeals, 6th
Circuit 1990 (Dungeons & Dragons):
“But if Johnny's suicide was not foreseeable to his own mother,
there is no reason to suppose that it was foreseeable to defendant
TSR…
…The fact is, unfortunately, that youth is not always proof against
the strange waves of despair and hopelessness that sometimes
sweep seemingly normal people to suicide, and we have no way
of knowing that Johnny would not have committed suicide if he
had not played Dungeons & Dragons…
…As far as the record discloses, no one had any reason to know
that Johnny Burnett was going to take his own life. We cannot tell
why he did so or what his mental state was at the time. His death
surely was not the fault of his mother, or his school, or his friends,
or the manufacturer of the game he and his friends so loved to
play. Tragedies such as this simply defy rational explanation, and
courts should not pretend otherwise.”
Virtual v. Real GUNS: the obvious distinction
Guns are not the cause of violence
They are actually a part of the
violence.
It is for that reason guns are different from
media influences, video-games and the rest.
Related: difference between ACTIONS (e.g.
rampage killing) & INFLUENCES (video-games,
movies). Between them lies INTERPRETATION
(which is about education)
Women Gamers – Women in Games
• “Video Games and Aestheticising Sexual
Violence” http://gamingbolt.com/video-games-and-aestheticising-sexual-violence
• “A Feminist Reviews Tomb Raider's Lara Croft”
http://www.forbes.com/sites/carolpinchefsky/2013/03/12/a-feminist-reviews-tomb-raiders-lara-croft/
• “Hitman Absolution: Trailer causes
outrage”http://www.pocket-lint.com/news/45874/hitman-absolution-trailer-causes-outrage-io-gamesproducer-talks-violence-and-content
• “In Virtual Play, Sex Harassment Is All Too
Real” http://www.nytimes.com/2012/08/02/us/sexual-harassment-in-online-gaming-stirs-anger.html
• “Image Based Harassment and Visual
Misogyny”http://www.feministfrequency.com/2012/07/image-based-harassment-and-visual-misogyny/
• “Fear of a Woman Warrior”http://www.gamespot.com/features/fear-of-a-womanwarrior-6404142/
• “On being a girl in computer science - a
confession” by Dr. Kimberly
Vollhttp://zanytomato.tumblr.com/post/44978912674/on-being-a-girl-in-computer-science-a-confession
Something(s) utopian to reflect on..
Razing the virtual glass ceiling: Gendered
economic disparity in two massive online games –
Ratan,
Lehdonvirta, Kennedy, Williams (2012)
http://vili.lehdonvirta.com/files/wmtr2821/Ratan-2012-gender-virtual-wealth-gap.pdf
Online dating study shows racial prejudices can be
easily altered
http://www.boston.com/news/science/blogs/science-in-mind/2013/11/04/online-dating-study-shows-racial-prejudices-can-easilyaltered/UsN6Rc6oOEIQQTsUQFLdxM/blog.html
Modifying player behavior in League of Legends
using positive reinforcement
http://www.gamasutra.com/view/news/184806/
You and Your Videogame Avatar Are More Moral Than
You Realize
http://www.forbes.com/sites/carolpinchefsky/2012/11/28/you-and-your-videogame-avatar-are-more-moral-than-you-realize/
Computer Games Save Norwegian Youth
http://www.tnp.no/norway/panorama/3904-computer-games-save-norwegian-youth
Strong-female protagonist game jam kicks off in
Vancouver to fight industry sexism
http://business.financialpost.com/2013/07/12/strong-female-protagonist-game-jam-kicks-off-in-vancouver-to-fight-industrysexism/?__lsa=9ee1-db35
And a concern: Sexualized avatars affect the real
world, Stanford researchers find
http://news.stanford.edu/news/2013/october/virtual-female-avatars-100913.html
9 Ways Video Games Can Actually Be Good For You
1. 'Mario' Is Like Steroids For Your Brain
2. 'Starcraft' May Make You Smarter
3. Video Games May Slow The Aging Process
4. They May Help Dyslexic Kids Read Better
5. Teen Gamers End Up Better At Virtual Surgery
Than Real Medical Residents
6. Video Games Can Be A Pain Reliever
7. 'Call Of Duty' Can Improve Your Eyesight
8. Video Games Can Be As Effective As One-On-One
Counseling
9. They Can Help Stroke Victims More Fully
Recover http://www.huffingtonpost.com/2013/11/07/video-games-good-forus_n_4164723.html
What’s Your Take?
“Gamers committing war crimes
should suffer ‘virtual
consequences,’ says Red Cross”
http://www.theverge.com/2013/10/8/4815090/gamers-committing-war-crimes-shouldsuffer-virtual-consequences-says
THANK
YOU
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